Easts Van Villages v Minister Administering the National Parks and Wildlife Act - [2001] NSWSC 559

Reported Decision:
(2001) ASAL (Digest) 55-65
(2001) ATPR (Digest) 41-211
(2001) Aust Contract R 90-132
[2001] NSWSC 559
[2001] ACL Rep 100 NSW 6
[2001] ACL Rep 245 NSW 24

New South Wales

Supreme Court

CITATION: Easts Van Villages & Anor -v- Minister Administering the National Parks and Wildlife Act & Anor [2001] NSWSC 559

CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): SC 30056/97

HEARING DATE(S): 31/5/01-7/6/01, 12/6/01-14/6/01

JUDGMENT DATE:
6 July 2001

PARTIES :

Easts Van Villages Pty Ltd (First Plaintiff)
Van Villages Pty Ltd (Second Plaintiff)
Minister Administering the National Parks and Wildlife Act (First Defendant)
State of New South Wales (Second Defendant)

JUDGMENT OF: Mathews AJ

COUNSEL : PM Biscoe QC; S Stanton (Plaintiffs)
JM Ireland QC; J Maston (Defendants)

SOLICITORS: Aitken McLachlan & Thorpe (Plaintiffs)
Crown Solicitor (Defendants)

CATCHWORDS: LANDLORD AND TENANT - holding over after fixed term lease - whether tenancy continued as monthly tenancy or whether lease for indefinite period created - found to be monthly tenancy - landlord entitled to terminate lease on appropriate notice - ESTOPPEL - lease terminated - lessee assumed that tenancy would continue until lessor undertook tender process for new lease - no detriment suffered - Commonwealth v Verwayen applied - no unconscionable conduct - MISLEADING AND DECEPTIVE CONDUCT - s 42 Fair Trading Act 1987 (NSW) - misrepresentation as to lessor’s intention to hold public tender for renewal of lease - whether the Crown, as lessor, carried on a business and whether representations were made in trade or commerce - held, Crown not carrying on a business, some representations made in trade or commerce - Ministerial press release not in trade or commerce - claim for loss of opportunity to become successful tenderer - claim not made out as no loss or damage suffered - CONTRACT - implied term to act reasonably and in good faith in exercise of legal rights - not needed to give business efficacy - no grounds for implication

LEGISLATION CITED: National Parks and Wildlife Act 1974
Local Government (Movable Dwellings) Amendment Act 1986
Fair Trading Act 1987

CASES CITED: Commonwealth v Verwayen (1991) 170 CLR 394
Waltons Stores (Interstate Ltd) v Maher (1988) 164 CLR 387
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
McMillan v Commonwealth (1997) 77 FCR 337
Fasold v Roberts (1997) 145 ALR 548
FCT v Whitfords Beach Pty Ltd (1982) 150 CLR 355
Concrete Constructions (NSW) Pty Ltd v Nelson (1991) 69 CLR 594
Munchies Management Pty Ltd v Belperio (1989) 84 ALR 700
Sellars v Adelaide Petroleum NL (1994) 120 ALR 16
Shepherd v Noyce Bros Pty Limited (1985) ATPR 40-588
Unilan Holdings v Kerin (1992) 107 ALR 709

DECISION: Verdict for the defendants

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

MATHEWS AJ

6 July 2001

30056/97 - EASTS VAN VILLAGES PTY LTD & 1 OR-v- MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT & 1 OR

JUDGMENT
Introduction

1 HER HONOUR: This case relates to the plaintiffs’ occupation and management of the caravan park in the Lane Cove National Park between 1995 and 1998. In 1997 the first plaintiff was served with a notice to quit the premises which was signed by the first defendant, the Minister for the Environment, as lessor. The plaintiffs contend that the Minister was not entitled to take this step in the circumstances which then existed. In June 1997 they commenced these proceedings. In due course, pursuant to a consent order, the plaintiffs vacated the caravan park in April 1998. They now claim various heads of damages in relation to the sequence of events which preceded their departure.

Factual Background

2 On 29 October 1975 a Deed of Lease was entered into between the then trustees of the Lane Cove River Park and the second plaintiff (“Van”) relating to an area of 8.42 hectares within the Park, upon which the lessee was to operate a caravan park and camping area. This area will be referred to as “the caravan park”. The duration of the lease was 20 years.

3 In 1986 the shareholding in Van was acquired by Bruce East and Sons Pty Ltd. The controlling shareholders at that time were Bruce and Bessie East, the other shareholders being their three sons, including Phillip East. In 1989 Bruce and Bessie East retired from active management and there was a restructuring of the shareholding of Bruce East and Sons Pty Ltd. Thereafter the shareholding was equally divided between the three East brothers, including Phillip East (“Mr East”). At the same time a deed was entered into between Bruce and Bessie East and their three sons, according to which the operation and management of various caravan parks owned by the company was divided between the three brothers. It was agreed that Mr East would operate and manage, and be entitled to the net income, from the caravan park at Lane Cove.

4 Until 1992 the Lane Cove River Park was reserved as a State recreation area under the National Parks and Wildlife Act 1974 (“the NPW Act”). On 24 April 1992 this reservation was revoked and the park was reserved, pursuant to section 33(2) of the NPW Act, as a national park called the Lane Cove National Park (“the National Park”). As such, the care, control and management of the park came under the Director-General of the National Parks and Wildlife Service (“the Service”) who was, and remains, subject to the control and direction of the Minister.

5 According to clause 20(1) of schedule 9A of the NPW Act, the lease of the caravan park to Van was automatically determined upon revocation of the park as a State recreation area. Mr East was informed of this fact in a letter from the Service dated 29 July 1992. He was told that a new lease would need to be negotiated.

6 One of the central issues in this case relates to the presence in the caravan park of a number of long term residents, being persons who resided in the camping ground for periods in excess of 12 weeks during any one year. Under clause 5(x) of the 1975 lease, no person was to be permitted by the lessee to reside on the premises in excess of this period. Nevertheless, by 1986, there were apparently 140 long term residents in the caravan park. In that year, 1986, the Local Government (Movable Dwellings) Amendment Act was passed which provided for local councils to issue licences for caravans and cabins in caravan parks to be occupied for periods in excess of 60 days in a year. Pursuant to this new legislation, Ordinance 71 was passed, setting out, inter alia, minimum standards to be adopted in relation to long term residence in caravan parks. Between 1986 and 1992 Van obtained licences from the local council to use a number of sites on its premises for long term residents. This system ceased upon reservation of the park as a National Park in April 1992.

7 On 16 December 1993 a deed of agreement was entered into between the Minister for the Environment and the first plaintiff, Easts Van Villages Pty Limited, (“Easts”) granting Easts a lease pursuant to section 151 of the NPW Act for the unexpired portion of the 1975 lease, namely until 31 October 1995. The lease was stipulated to be on identical terms and conditions to those contained in the 1975 lease.

8 Easts had been incorporated by Mr East in 1992. Mr East and his wife were (and remain) its sole shareholders and directors.

9 On 21 June 1995 a meeting took place at the caravan park between officers of the Service and Mr East and his advisers. The meeting was suggested in an undated letter to Mr East signed on behalf of Arthur Willis, who was then the Acting District Manager for the Lane Cove area. The persons who accompanied Mr East to the meeting were Derek Sinclair, a director of Integrated Site Design, and his partner Stuart Moar. The Service was represented by Messrs Vince Rago and Stephen Allen, both being Senior Property Management Officers, Ms Alexandra Wyatt, who was the Acting Senior Ranger for the area, and Ms Vanessa Richardson, who was an Acting Ranger. What transpired at this meeting is central to many aspects of the plaintiffs’ case and I shall be discussing it in detail later. Suffice it is to say here that discussions were held as to the future of the caravan park after the expiry of the lease in October 1995. The Service representatives indicated that a plan of management would be prepared for the whole of the National Park, and that a tendering process would take place to determine the commercial rights to operate the caravan park. As these processes were unlikely to be completed before the expiration of the then current lease, it was agreed that Easts would continue to occupy and operate the caravan park in the meantime. The terms upon which this occupation was to continue is very much in dispute between the parties. I shall discuss this matter later.

10 After this meeting there was an exchange of letters between Mr Sinclair and Mr Rago setting out their understanding of the discussions which had taken place at the meeting. I shall be discussing the content of these letters later.

11 Under the 1975 lease, rent for the caravan park was payable on a six monthly basis. In accordance with the agreement reached at the meeting of 21 June 1995, Easts remained in occupation of the caravan park after the expiry of the 1993 lease but paying rent on a monthly basis. This situation continued until after the commencement of these proceedings.

12 On 18 December 1995 the Service issued a discussion paper seeking submissions for the preparation of a draft plan of management for the National Park. On 31 January 1996 Mr Sinclair of Integrated Site Design forwarded submissions to the Service on behalf of Easts.

13 In the meantime, Mr East was continuing to expand the number of sites in the caravan park. He said that in about September 1995 he obtained verbal approval from a representative of the Service, whose name he could no longer recall, to install five new cabins in the caravan park. Each of these cabins cost approximately $40,000 to buy and about $2,000 to install. Later, in February or March 1996, he installed a further two cabins in the caravan park at much the same cost. On this occasion, he said, he obtained verbal approval from Terry Wilson, who was then the Service’s Sub-District Manager for Lane Cove. Later again, in August 1996, two further cabins were purchased and installed. On this occasion Mr East said that an unnamed member of the Service approved the additional acquisition. On each occasion, Mr East said, the decision to expend additional funds for new cabins was based upon his understanding that Easts would continue to manage the park while the plan of management was being prepared and then for a further period whilst the tender process took place.

14 Mr Wilson could not recall any conversation in which Mr East sought his approval for the installation of additional cabins in the caravan park. He would have refused any such application had it been made, he said. The defendants’ case generally is that no approval was given for the installation of additional cabins in the caravan park. This was a matter which would require written approval, according to the defendants’ evidence, but no record could be found of any correspondence on this subject, at least at that time. A later written request made on behalf of Mr East for consent to conduct renovations on amenities blocks in the caravan park, was declined by the Service.

15 On 23 July 1996 a letter, signed by Mr Willis as District Manager, was sent by the Service to Easts. This letter assumes some significance in the context of this case, and it is necessary to quote it in full.

“23 July, 1996

Mr P East

Easts Lane Cove River Van Village

Plassey Road

North Ryde

NSW 2113

Dear Sir

Re: Planning for the tendering of the Tourist Caravan Park Site in Lane Cove National Park

Following the cessation of the Easts Lane Cove River Van Village lease on October 31 1995 the National Parks and Wildlife Service has put in place a time frame to prepare tender documents for a new lease arrangement.

In the meantime continued occupancy of the caravan park by you will be pursuant to the holding over provisions of the expired lease. This includes the payment of rental on a monthly basis and compliance with the terms of the lease.

In the granting of any approval to carry on a commercial activity such as the caravan park the NPWS is required to enter into a public tendering process. The tendering process will include a consideration of various options as to how the site can be used consistent with the objectives of the NPWS Act, 1974. This reassessment would include matters such as the most favourable mix of overnight tourist accommodation, rental return to the Service and any environmental impact of the caravan site on Lane Cove National Park.

The Service also understands that approximately 50-60 sites are being occupied by persons who have exceeded the 12 week maximum length of stay as stipulated under the previous lease conditions. Private permanent occupation of sites is also contrary to Service policy.

The Service is concerned to see that the caravan park in future is operated in a style that is compatible with the purposes for which the National Park was reserved under the provisions of the Act.

To facilitate the tendering process we would ask that you:

1. Provide the Service with a list of those persons who are currently residing on site in excess of the 12 week length of stay period per year as stipulated in the lease agreement.

2. Notify all persons currently exceeding the 12 week length of stay period per year that they seek alternative accommodation off site no later than 31 March 1997. It should be clearly pointed out to those persons that the terms of your lease specifically prohibit individual stays of longer than 12 weeks per year. The new lease will also prohibit long stays. Please provide the Service with a copy of your communication with the affected persons.

3. Not permit any additional long stay occupation of sites in the Caravan Park inconsistent with the terms of the expired lease.

The above requests will allow the Service to facilitate and finalise the public tendering and selection process. It is proposed that tenders for the new lease of the tourist caravan park will be called for in April 1997 and the successful tender selected by 30 June 1997.

The Service is aware that you are interested in submitted a tender for the new lease. Should you be the successful tenderer the Service would expect that the lease would commence from July 1 1997. However, in the event you are unsuccessful the Service would envisage a two month handover period to the new lessee.

The Service is currently reviewing it’s

Plan of Management for Lane Cove National Park. Should you or any of your patrons wish to make suggestions regarding the caravan park or any other issues relating to Lane Cove National Park their comments will be considered as part of this review process. It is anticipated that a Draft Plan of Management will be placed on public display by September or October 1996.

The Service would appreciate your co-operation in regard to the above matters and looks forward to your response. Should you have any inquiries please contact the Sub-District Manager, Terry Wilson, at Lane Cove National Park (Tel. 412-1811).

Yours sincerely,

(signed)

Arthur Willis

District Manager

”

16 The second paragraph of this letter referred to “the holding over provisions of the expired lease.” However, there were no holding over provisions in the 1975 lease, the terms of which were incorporated into the 1993 lease.

17 On 2 August 1996 Mr Sinclair responded to the Service’s letter on Mr East’s behalf. Portions of that letter bear repetition here:

“Firstly, thank you for your advice that the East’s occupancy of the caravan park will continue under the provisions of the expired lease until the proposed tender process has been completed.

A list of all permanents is being prepared, as requested, and this list should be available in the next week or so. As previously indicated to officers of the National Parks and Wildlife Service permanent residents were living in the Lane Cove Caravan Park long before the lease was transferred to the Easts. However, in line with your request the Easts are prepared to issue a notification to all permanent residents to indicate that alternative accommodation must be found no later than 31 March 1997…”

18 The letter went on to suggest that discussions should take place between Mr Sinclair and officers of the Service, as to the nature of advice to be given to long term residents.

19 On 3 September 1996 a meeting took place between Mr East, who was accompanied by Mr Sinclair, and Messrs Rago, Willis and Wilson of the Service. Discussions at the meeting generally centred around the proposed eviction of long term residents from the caravan park. Mr East tabled a schedule setting out the details of current permanent residents. He said that Easts was “prepared to comply” with the Service’s request that he notify permanent residents that they should find alternative accommodation.

20 On 16 September 1996 Mr Sinclair wrote to Mr Wilson setting out his understanding of what had transpired at the meeting of 3 September. He noted that the requisite notices would need to be issued to residents by the middle of October 1996 in order “to meet the Service’s timetable for the tender of the future management of the caravan park”. A draft notification to long term residents was attached to Mr Sinclair’s letter for approval by the Service. Mr Rago and Mr Wilson later suggested an alteration to Mr Sinclair’s draft, which was incorporated by Mr East into the notices which were eventually served upon the residents.

21 On 14 October 1996 the long term residents of the caravan park, then apparently numbering some 90 to 100, were served with the notices of termination. Not surprisingly, the residents were very upset about this. They sought assistance from the media, and representations were made on their behalf to the Minister. The issue acquired a political dimension. Later in October a meeting was held between the Minister and officers of the Service, including Mr Rago and Mr Wilson, to discuss the notices of termination. On one account of this meeting (Mr Rago’s), the Minister said that she was unhappy with the manner in which the Service had dealt with the issue and noted that the Service had been criticised for allowing long term residents to remain in the park for over 10 years. The Minister requested that officers of the Service interview the long term residents who had received notices of termination. The Service was to report back to her with management options for dealing with the residents. In a record of the meeting at the Minister’s office on 24 October 1996, it was noted that:

“the Minister sought and was given advice as to the current status of the lease (now on monthly tenancy) with Mr East. She indicated that the Service should fast track the tendering of the new lease for the caravan park - tender documentation to be finalised by January, 1997.”

22 As requested by the Minister, officers of the Service then proceeded to interview all long term residents who were willing to talk to them. The residents’ responses were recorded on a questionnaire form which had been drafted for the purpose of these interviews. The completed forms were annexed to a briefing note for the Minister, dated 26 November 1996, which was approved by Mr Willis. The briefing note observed that “all residents feel very strongly that the lessee of the Van Village misled them by failing to notify them of the conditions of the lease.” It was noted that residents were likely to seek compensation from Easts. The note recommended that Easts be issued with a notice to quit the caravan park. It was suggested that the District should then employ a contract manager to manage the caravan park until the permanent residents vacated it. The note commented “It is inappropriate to re-assign the lease to any other person while the Village is occupied by permanent residents.” It was suggested that the long term residents in the caravan park be allowed varied periods to vacate the premises according to their length of residency. Those who had been in occupation for over ten years should be allowed until 31 December 1997 to vacate.

23 On 23 December 1996 Mr Sinclair, on behalf of Easts, wrote to Mr Smith-White, the Service’s Regional Manager, expressing concern as to the condition of some of the facilities on the caravan site which required renovation and maintenance. The letter indicated that Easts was concerned to ensure that any capital expended on the park would be recoupable by the company if the outcome of the tender was not in its favour. On 5 February 1997 Mr Smith-White, the Service’s Regional Manager, replied to Mr Sinclair, saying, inter alia:

“Given the lease is now on a monthly tenancy basis and planning for the national park including the caravan park is not yet complete, I do not consider it would be appropriate for any major works to be carried out on the site. Additionally, it is Service policy not to confer any tenant rights or possessory interest in fixed improvements such as buildings under lease arrangements.”

24 The next day, 6 February 1997, a meeting took place between Messrs East and Sinclair, on the one hand, and Messrs Willis, Rago and Wilson on the other. On this occasion Mr Willis raised the possibility of the caravan park not being leased out, but being managed under contract with the Service. This, he said, was the District’s preferred option at that time. This was the first indication to either Mr East or Mr Sinclair that the future operation of the caravan park might be resolved otherwise than through a tender process. However, no letter of protest was written by either of them. Mr East said in his affidavit that he was comforted by his understanding that the plan of management was still being prepared. He believed that, with the assistance of Mr Sinclair, he could make compelling submissions as to why the lease option was a good option. In that event he considered that Easts was likely to be the successful tenderer.

25 On 10 March 1997 Mr Alastair Howard, the Service’s Executive Director of Operations, wrote to long term residents in the caravan park indicating the Minister’s decision that those residents who had been living there for up to ten years would be given until the end of 1999 to vacate the park, and that those who had been living there for ten years and more would be permitted to stay indefinitely. No formal notification to this effect was made to Mr East or to his company. On 24 March 1997 Mr East wrote to his local Member of Parliament, Mr John Watkins, expressing concern about the course of events. He was uncertain, he said, as to the Service’s “real agenda” for the caravan park and was concerned about the adverse impact on the operation of the park arising from the Service’s delays in reaching a decision on its future. He referred to the notices of termination which had been served, at the Service’s direction, upon long term residents, and the Minister’s subsequent intervention. Mr East commented that “We have not been advised by the Service or the Minister of the reasons for the change in policy or what we should do now in relation to the tenants.” He expressed concern that, while the notices were served at the instigation of the Service, the residents had a perception that it was his company which was responsible for them.

26 On 14 April 1997 Mr Willis signed a briefing note for the Minister relating to the “long term management options” for the caravan park. Under the heading of “Departmental Comment” the following passages appear:

“Mr East has a long documented history of breaches of the original lease agreement. These include:

1. permitting occupation by persons in excess of the 12 week maximum length of stay as stipulated in the lease provisions;

2. keeping domestic pets, in particular rabbits and cats;

3. planting exotic species;

4. inappropriate runoff and stormwater practices;

5. inappropriate charging of fees for overnight visitors, contrary to the Camping and Caravan Association’s regulations. (Mr East was subsequently instructed to reimburse all person who had been inappropriately charged);

6. dumping of grass clippings within the boundary of the Lane Cove National Park;

7. dumping of grease from barbeques within the boundary of the Lane Cove National Park.

The District has consistently recommended that Mr East be issued with a Notice to Quit.

It is intended that the Service assume responsibility for the management of the Van Village on Lane Cove National Park.

Accordingly, Mr East should be issued with a letter requiring him to quit by 30 June 1997.

This requirement is important for the long term effective management of the site. The three months immediately proceeding May are quiet in terms of visitation. This will provide the Service with an ideal opportunity to conduct much needed maintenance and to upgrade the camping sites.

A business plan outlining how the Service can manage the Van Village has been prepared, and is attached.”

27 On 16 April 1997 the Minister issued a press release in the following terms:

“ALLAN SAVES BATTLERS FROM EVICTION

Environment Minister Pam Allan today halted plans by a caravan park operator to evict over 40 people from a van park located within the Lane Cove National Park.

Ms Allan said if the evictions had gone ahead elderly residents in their 60s and 70s would have found themselves on the street.

These residents have in many cases pumped their life savings into these mobile homes located within the Lane Cove National Park.

For years the residents have been mislead by the van operator into believing that they could reside permanently in the caravan park.

This, however, not only contravened his lease but was also in breach of the National Parks and Wildlife Act.

When the operator was advised that he was in breach of this lease by the NPWS he immediately issued eviction notices to all the residents.

On hearing of their plight I immediately ordered the Service to instruct the Lessee to withdraw the eviction notices and I organised a meeting with a delegation of residents.

I was particularly moved by the case of Brian and Paulette Oliver, both in their 60s, who were told they could remain permanently on site almost 10 years ago. Consequently the Oliver’s undertook extensive improvements to their van.

Brian Oliver if evicted would have to move possibly to the Central Coast where he would find it virtually difficult to find work. The Oliver’s were devastated by the eviction notice.

After asking the Service to review each individual residents case, I have instructed the Service to permit residents who have occupied a site for 10 years or more to remain on that site permanently.

Other residents will be permitted to remain in the park until the end of 1999, additionally I am happy to consider any request for an extension on a case by case basis.

The predicament of the residents was compounded by the former Coalition Government who encouraged the Lessee to take on additional permanent residents which was clearly contrary to the conditions of the lease.

Ms Allan also announced that the NPWS would take over management of the site in the near future. Rent from the site is currently $150,000 pa. And she estimates the Service may generate a profit of $500,000.

28 On the same day, 16 April 1997, in response to a Parliamentary question from Mr Watkins, the Minister described Mr East as “an unscrupulous caravan park operator” who had misled the residents of the caravan park.

29 Mr East was understandably upset about the Minister’s press release and her Parliamentary comments. On 21 April 1997 he and Mr Sinclair had a meeting with the local member, Mr Watkins, in which they voiced their concerns.

30 On 28 April 1997 the Minister wrote to Mr East enclosing a notice to quit which required that Easts deliver up possession of the caravan park by 30 June 1997. Subsequent attempts by Easts’ then solicitor to arrange a meeting with the Minister proved unsuccessful. On 29 May 1997 the Minister’s representative wrote to the solicitors indicating that the Minister had determined that the Service should assume responsibility for the management of the caravan park. It was on this basis, the letter said, that the notice to quit had been issued. This meant that there would be no tender process for the future management of the caravan park.

31 On 3 and 17 June 1997, meetings took place between Mr East and officers of the Service, including Mr Willis and Mr Wilson. Mr East was told that the Service was to take over the running of the caravan park on 1 July 1997 in accordance with the notice to quit. Discussions took place as to the possible acquisition of some of the units on site, but no resolution was reached. In the second meeting Mr Sinclair indicated that Mr East was considering legal action. In the meantime, on 4 June 1997, Mr East’s solicitors wrote to the Minister setting out the sequence of events and claiming that Easts had a number of causes of action against the Minister and the Service. The letter requested that the Minister retract the notice to quit, that she confirm that Easts was entitled to remain in occupation of the caravan park until the completion of the tender process, and that she withdraw her press release and issue an agreed statement correcting its inaccuracies. On 18 June 1997 the Minister responded, disputing many of the factual assertions in the letter under reply, and declining to retract the notice to quit or, by implication, to withdraw any of the statements made in the press release.

32 On 17 June 1997 the plaintiffs commenced the present proceedings. The primary relief sought in the original summons was an injunction restraining the defendants from acting on the notice to quit. By reason of subsequent events, which I shall describe shortly, the plaintiffs no longer seek that relief. They claim various heads of damages, but no injunctive relief. The causes of action relied upon are, in essence, breach of contract, estoppel, and engaging in misleading or deceptive conduct contrary to section 42 of the Fair Trading Act 1987 (NSW) (“the FT Act”).

33 On 6 August 1997 the defendants filed a defence and cross claim in the proceedings. The cross claim sought an order for possession of the caravan park pursuant to the notice to quit which had been served in April 1997. Subsequent doubts were raised as to the validity of this notice to quit. A further notice to quit, signed by the Minister, was served on Easts on 1 September 1997 requiring Easts to vacate the caravan park one month from that date.

34 On 16 September 1997 Easts filed a Notice of Motion seeking an interlocutory injunction to restrain the defendants from acting on the second notice to quit. On 21 November 1997 this motion, and a motion by the Minister for summary judgment on its cross claim for possession, were heard by Callaway AJ. No transcript of those proceedings is presently available. However, the parties have agreed as to much of what took place that day. At about 2.35 pm, after evidence and submissions had been presented, the matter was adjourned in order to enable counsel to conduct settlement discussions. The hearing resumed approximately half an hour later. Counsel for the first plaintiff, Mr Stanton, said words to the following effect to his Honour:

“The matter has been settled. The plaintiff is prepared to concede an order for possession on the basis that no writ should issue until 30 April 1998 and on the basis that the Amended Statement of Claim is left on foot. The plaintiff expressly reserves its rights to claim damages and would like this noted on the record.”

35 Subsequently short minutes of order were drafted and his Honour made orders in the following terms:

“The Court:

1. Orders that there be judgement in favour of the First and Second Cross Claimants for possession of the caravan park.

2. Orders that the First Cross Claimant have leave to issue a writ of possession to enforce the judgment entered pursuant to order 1, such writ to lie in the office of the Registry until 23 April 1998.”

36 The defendants contend that this judgment gives rise of an estoppel by way of res judicata or issue estoppel which now operates to bar the plaintiffs from seeking any relief in the proceedings other than common law damages.

37 This brings me to a description of the way in which the plaintiffs frame their case and the relief which they seek.

The Plaintiffs’ Case

38 A convenient summary of the way in which the plaintiffs frame their case is to be found in the written submissions prepared by counsel for the plaintiffs, Mr Biscoe QC and Mr Stanton:

“In summary, the plaintiffs’ case is as follows:-

(a) the term of Easts’ lease was contractually extended to the date of completion of a plan of management and public tender process for a new lease and, if Easts’ tender was unsuccessful, two months thereafter.

(b) alternatively, the defendants are estopped in equity and in law by their conduct from relying, in answer to the plaintiffs’ claim, upon any legal right in the Minister to give a notice to quit to Easts, it being unconscionable in the circumstances to do so, or the right was waived.

(c) further or alternatively, there was an implied contractual obligation on the Minister, which it breached, to act reasonably and in good faith in exercising any legal right to give a notice to quit.

(d) further or alternatively, the defendants engaged in misleading or deceptive conduct contrary to s.42 of the Fair Trading Act 1987 (NSW) in leading the plaintiffs to believe that Easts’ tenancy would continue until completion of a public tender process and, if Easts’ tender was unsuccessful, two months thereafter. The Minister also contravened s.42 by some of the statements in her press release of 14 April 1997.”

39 The relief sought by the plaintiff is also set out in the plaintiffs’ written submissions in the following form:

“In summary, the plaintiffs claim:

(i) Loss on sale of cabins, caravans and units	$ 455,000
(ii) Loss of income for final 12 months trading	$ 140,383
(iii) Loss of income for 50 weeks (tender period) after April 1998	$ 920,215
(iv) Expenditure on external consultants	$ 13,264
(v) Loss of opportunity to be the successful tenderer	x% of $5,800,000
(vi) Damage to reputation	To be assessed”

40 At this stage it is appropriate to discuss, sequentially, each of the four bases upon which the plaintiffs seek to establish their claim.

Was Easts’ Lease Contractually Extended?

41 The statement of claim contends that the term of the 1993 lease was extended to a date being a reasonable period after:

42 This variation was said to be partly express and partly implied. In so far as it was express, it was said to arise from the meeting on 21 June 1995 and from subsequent letters dated 26 June 1995 and 18 July 1995 which I shall describe shortly. According to the statement of claim, the implied term was “that aspect of the agreement allowing occupation of the Caravan Park for a reasonable period after the public tender had resulted in a (new) manager for the Caravan Park, so as to give efficacy and meaning to the rest of the agreement.”

43 During final submissions, Mr Biscoe sought to rely also upon the contents of the letter dated 23 July 1996 as constituting part of the material from which an express amendment to the 1993 lease could be drawn. Mr Ireland QC, who appeared with Mr Maston for the defendants, submitted that the plaintiffs should be confined to the terms of their pleadings. A discussion ensued on this subject. However, as will be seen, it would make no difference to the plaintiffs’ case if they were permitted to extend the basis of their claim, for the letter of 23 July 1996 could not, as a matter of law, be used in the manner suggested by Mr Biscoe.

44 The final comment I should make about the pleadings on this issue relates to the alternative form in which this contractual count is framed. It is suggested that the events of June and July 1995 (and possibly also July 1996) created an amendment to the 1993 lease, or alternatively created a separate agreement which was collateral to or which superseded the second lease. In the circumstances, nothing turns upon which of these alternative formulations is adopted.

45 I turn now to the factual basis upon which the plaintiffs claim that their entitlement to remain in occupation of the caravan park was extended until after the adoption of the plan of management for the National Park and the subsequent holding of a public tender for the leasing and management of the caravan park. The meeting of 21 June 1995 is central to the plaintiffs’ claim in this respect, and it will be necessary to describe the evidence relating to this meeting in some detail.

46 The meeting was called to discuss the future of the caravan park, given that the 1993 lease was due to expire later that year. The meeting was suggested in an undated letter, signed on behalf of Mr Willis, which was probably sent on 9 May 1995. That letter was in the following terms:

“Mr P East

East Lane Cove River Van Village

Plassey Rd

NORTH RYDE

NSW 2113

Dear Sir

Re: Planning for the Tendering of the Caravan Park site in Lane Cove National Park

I wish to advise you that the Service is in the early stages of preparing the tender documentation for the continued use of the Caravan Park in Lane Cove National Park given that the current lease expires on October 31, 1995.

As you are aware it is Service policy that the granting of commercial rights, such as the caravan park site, must be determined by a public tendering process. Planning for the tendering process will include consideration of various options as to how the site can be used consistent with the objectives of the National Parks and Wildlife Act, 1974 as well as matters such as rental return to the Service and any impact of the site on Lane Cove National Park.

You would appreciate that part of the process also involves analysis of the current use of the caravan park. In this regard it has been bought to my attention that currently there may be numerous sites being occupied on a permanent basis at the caravan park. Such use of the caravan park for such purposes is inconsistent with several terms of your lease particularly clause 5(x). Given that your lease expires in seven months I would appreciate it if you could provide me with a list of all current “permanents” as well as the nature of their occupation of specific site and the date at which occupation commenced. This information will assist the Service in the preparating the tender documentation. I also request that you do not permit any additional long term occupation of sites in the caravan park inconsistent with the terms of your lease.

Finally, I would appreciate the opportunity to discuss several management matters with you involving drainage into the park from the caravan park and weed management . Could you please contact Alexandra Wyatt, Senior Ranger, Lane Cove National Park on 412 1811 to arrange a meeting.

Yours faithfully

(Signed)

Arthur Willis

Acting District Manager

for the Director-General”

47 The meeting took place at the Caravan Park and was followed by a tour of the park itself. As already mentioned, the persons at the meeting were: Messrs East, Sinclair and Moar, from the plaintiffs’ side. The Service was represented by Messrs Rago and Allen and Ms Wyatt and Ms Richardson. All participants swore affidavits as to what transpired at the meeting, and all but Mr Allen gave evidence and were cross-examined upon their affidavits.

48 As to the matters discussed at the meeting, it is common ground that, apart from discussions on management matters, which are irrelevant here, the discussions at the meeting focused upon two principal issues: first, there was a discussion about the fact that there were long term residents in the caravan park, which was in breach of the lease and was contrary to Service policy. It would appear that other possible breaches of the lease were also discussed, such as the necessity for weed control. As relevant here, the meeting also focused upon the plaintiffs’ future occupation and management of the caravan park, given that the lease was due to expire on 31 October 1995. It is the plaintiffs’ contention that officers of the Service said at the meeting that the Service proposed to prepare a plan of management of the National Park following which they would proceed with the tendering process in relation to the caravan park. As it was not anticipated that this process would be completed before the expiration of the lease, it was agreed that Easts could remain in occupation in the meantime under the same terms as those contained in the existing lease. According to Mr Moar, Mr Rago said that the entire process could take up to nine months, although “these things can vary.” Mr East, in his evidence, also described Mr Rago as telling him that the process was likely to last about nine months, although he said that this took place at a private discussion after the meeting, attended only by Mr Rago and himself.

49 The defendants’ witnesses agreed that there was discussion at the meeting as to the basis upon which the plaintiffs would remain in occupation of the caravan park, after the expiration of the 1993 lease. The essential point of difference between the affidavits filed on behalf of the plaintiffs, and those filed on behalf of defendants, is that those of the defendants’ witnesses who referred to this matter (Mr Rago, Ms Wyatt and Ms Richardson) all said that any carry-over of the existing lease would be on a monthly basis. Mr Rago said that to the best of his recollection, no-one on behalf of the Service, gave any assurance to Mr East that he could remain in occupation until after the plan of management was exhibited. He quoted his recollection of what he said in the following terms:

“The District does not favour calling tenders for a new lease until the plan of management has been publicly exhibited. It is likely that, when your lease expires, your occupancy will continue on a monthly holding over basis. That means that you will then have the right to occupy the Park on a month to month basis. At this stage the Service is looking at a six to nine month period for preparation of the plan of management and the tender process to be finalised. However, if the plan of management process is taking longer than that, the new lease may go to tender independently of the plan of management.”

50 Both Ms Wyatt and Ms Richardson in their affidavits said that no connection was drawn at the meeting between the proposed plan of management and the tender process for the caravan park. Ms Wyatt said that plans of management can take a very long time: it would have been impossible to complete this plan in less than 12 months.

51 It can thus be seen that the affidavit evidence adduced by the plaintiffs and the defendants differed from each other in the following significant respects:

(1) According to the plaintiffs, the defendants’ representatives said that there was to be a plan of management followed by a tender process. The defendants denied that a link was drawn between these two processes.

(2) The defendants said that Mr East and his advisers were told that any holding over after the expiration of the 1993 lease was to be on a monthly basis. This was not mentioned by Mr East or Mr Sinclair and was denied by Mr Moar.

52 There is a close link between (2) and (3), but (3) goes beyond the contractual issue I am dealing with here. It is relevant to the issue of estoppel and will be discussed later.

53 All persons who were present at the meeting of 21 June 1995 gave evidence at the hearing, with the exception of Mr Allen. Mr Allen appears to have taken no active part in the discussion. Indeed, very few people remembered that he was there at all. The account in his affidavit as to what took place at the meeting was so general as to throw no additional light on any of the matters in contention between the parties.

54 The evidence of the remaining six participants generally accorded with the accounts of the meeting they had given in their affidavits. There were one or two significant variations, which I shall mention in due course. But by the time they came to give their evidence almost six years had elapsed since the meeting. It is unrealistic to expect detailed and accurate recollections in these circumstances unless contemporaneous notes were taken.

55 In this case there were three roughly contemporaneous documents which referred to the issues discussed at this meeting. These consisted of an exchange of letters between Mr Sinclair and Mr Rago and a briefing note prepared by Ms Richardson.

56 On 26 June 1995 Mr Sinclair, as director of Integrated Site Design, wrote to Mr Rago in the following terms:

“National Parks & Wildlife Service

43 Bridge Street

Hurstville NSW 2220

26 June 1995

Attention Mr Vince Rago

Dear Mr Rago,

Re: Easts Lane Cove River Van Village

Mr Phillip East, the lessee of the Easts Lane Cove River Van Village, has asked us to write to you in relation to our recent meeting which was held to discuss issues associated with re-leasing the Caravan Park by the National Parks and Wildlife Service.

The opportunity to meet on-site and inspect the Park was very useful as it helped to clarify the Service’s intentions both in terms of the process to be followed on the lease and management issues relating to the surrounding National Park. In this regard the following general understanding was reached at the meeting:

1. The Service intends to hold a public tender of the commercial rights to the Caravan Park.

2. The creation of the tender documentation is subject to finalisation of a Plan of Management for the recently gazetted Lane Cove National Park both of which the Service is preparing as a matter of priority.

3. To the extent that it is appropriate to do so, the Service would like input from Easts in the preparation of the Plan of Management and the tender documentation.

4. Both the Plan of Management and the tender process will address the rights of the existing permanent residents, many of whom were occupants of the Park before the current lease was obtained by the Easts.

5. The Service wishes to make the operation of the Caravan Park an integral component of the overall management of the National Park and not an isolated commercial enterprise. The integration is to be based on commercial and environmental considerations.

6. Given that the current lease expires on October 31, 1995 it is unlikely that the proposed tender process will be completed by its expiry date. Accordingly it is proposed that the East’s management will continue until the matter is determined under the same lease conditions.

Integrated Site Design has been engaged by Easts to assist them in the preparation of its submissions on the Plan of Management and ultimately the tender proposal. As we see it the first task is to document the existing situation and the issues surrounding the operation of the Caravan Park as an input to the Plan of Management. We would propose a further meeting with the Service’s personnel involved in this planning process immediately after the coming school holidays to systematically identify and discuss the information required for the Plan of Management. There may also be a need to discuss the material required for inclusion in the tender documentation and we are available to discuss this matter with you at an appropriate time.

Yours sincerely

(Signed)

Derek Sinclair

Director

”

57 Mr Rago’s response was short and to the point. On 18 July 1995 he wrote to Mr Sinclair in the following terms:

Mr D Sinclair

Integrated Site Design

2/34-42 Alison Road

RANDWICK

NSW 2031

Dear Mr Sinclair

I refer to your letter of 26 June 1995 and the meeting held with Service staff on 21 June, 1995 at your client’s caravan park, Lane Cove National Park.

The Service agrees that your account of the meeting is reflective of the issues discussed. With regard to the tender programme for the new lease, if it becomes evident that the Plan of Management will, be inordinately delayed, the Service may choose to go to tender before the plan is publicly advertised.

The Service also proposes at this stage that your client’s occupancy beyond 31 October, 1995 (up to the time a new lease agreement is entered into) will be on a “monthly tenancy” basis with rental payable proportionate to the rate before expiry.

Yours faithfully

(Signed)

V. Rago

Senior Property Management Officer

for

Director-General

”

58 These are the two more or less contemporaneous letters which referred to the meeting of 21 June 1995. Mr Richardson’s briefing note will be described later.

59 On 31 October 1995 the 1993 lease expired. Thereafter, Easts paid rent on a monthly basis. The receipt for the first rent payment was accompanied by a letter dated 30 November 1995 addressed to Mr East and signed on behalf of Mr Willis. This letter was in the following terms:

“Lane Cove River Van Village

Attention: Mr. P. East

Plassey Road

North Ryde NSW 2113

Dear Mr. East,

As you are aware, your lease of the caravan park at Lane Cove National Park expired on 31st October 1995.

Your occupation of the caravan park will continue on a monthly tenancy basis pending the Service’s determination on the future management of the site.

A Plan of Management for the National Park is scheduled for public exhibition during 1996 and it is proposed to address the operation of the caravan park as part of that planning process. I understand there had been some discussions with you in this regard.

The terms and conditions of occupancy including rental will continue to be in accordance with the provisions of the expired lease. Monthly rental payments should be submitted to the Sub-District office at Lane Cove park.

Should you require further information please contact A/Senior Ranger Jeff Johnston on 412 1811 during normal business hours.

Yours sincerely,

(Signed)

Arthur Willis

District Manager

for Director-General

30.11.1995

Encl: Receipt 371241”

60 Mr East was asked by Mr Ireland about the November 1995 letter. He agreed that it set out his understanding of the arrangement which had been made at the meeting in June, namely that there would be a plan of management followed by a tender process and that Easts would pay rent on a monthly basis in the meantime. Under further questioning he conceded that the letter did not mention a tender process. He said “After being told at the June meeting that there would be a plan of management, a tender process, which would span probably nine months, that we would pay rent monthly, I didn’t see that it was relevant. I had my mind set where we were going.” (T67) Both Mr East and Mr Sinclair were asked about Mr Rago’s letter dated 18 July 1995 which, it will be remembered, referred to a “monthly tenancy.”. Neither of them took issue with its contents. If they had done so at the time, it is likely that Mr Sinclair would have responded accordingly.

61 Under this contractual head of claim the plaintiffs contend that, as a result of the June discussions, Easts acquired a secure tenancy of the caravan park until such time as the tender process was completed. Whether it would be possible in law to acquire a tenancy of uncertain duration, in the manner suggested by the plaintiffs, does not need to be addressed here. For I am firmly of the view that the extension of the lease beyond 31 October 1995 was, as the correspondence indicates, on a “monthly tenancy” basis. Mr East conceded in his evidence, that he was told at the June meeting that rent would be paid on a monthly basis (see paragraph 60 above). Mr Rago, Ms Wyatt and Ms Richardson all described conversations in which Mr East was told that after 31 October 1995 the lessee would be allowed to continue in occupation of the caravan park on a month to month basis. That also was the import of Mr Rago’s letter dated 18 July 1995 to which no exception was taken by either Mr East or Mr Sinclair. Mr Biscoe suggested in his submissions that the statement in Mr Rago’s letter that Easts’ occupancy would be on a “monthly tenancy” basis was not accepted by Mr East. However, the evidence does not support this contention. To the contrary, the payment by Easts of one month’s rent immediately after the expiration of the 1993 lease would appear to be an acceptance of a tenancy on a monthly basis.

62 If I had any lingering doubts as to whether there was a discussion of a monthly tenancy at the June 1995 meeting (which I do not), these would be dispelled by a briefing note prepared by Ms Richardson on 25 July 1995 which was annexed to her affidavit. In it, she referred to the June meeting, and made the following observations:

“A meeting has taken place between the NPWS and Management of Easts Caravan Park to discuss the commercial future of the site. The Management are aware of the expiree

date of the lease as well as the possibility of a new direction in park management. They are also aware that until a new tender document is completed that they will be able to extend their lease month by month on a temporary basis.”

63 Mr Biscoe concedes that a “monthly tenancy” is, as its name implies, terminable by either party upon one month’s notice. On my reading of the evidence, this was plainly the type of lease which was acquired by Easts after the expiration of the 1993 lease. It created no security of tenure, other than the right to receive one month’s notice to vacate the premises. Both notices to quit which were later issued by the Minister were for a period of one month or more. They were, therefore, not in breach of any contractual arrangement between the parties.

64 I should say, in fairness to Mr East and Mr Sinclair, that I do not consider that they deliberately misstated what took place at the June meeting. Rather, I think that they misconstrued the situation. They assumed that references to “monthly rental” or “monthly tenancy” related only to the intervals between rent payments, and not to the nature of the tenancy itself. In this they were mistaken. Their mistake was one of law rather than of fact. I accept that they genuinely believed that Easts had acquired some form of security of tenure which went beyond a monthly tenancy. However, the fact is that no more than a monthly tenancy was on offer. The payment of rent on a monthly basis after the expiration of the 1993 lease constituted, in law, an acceptance of this offer. The mere fact that Mr East may have been under a misapprehension as to the nature of the tenancy which was thus established, does not, in law, affect this situation.

65 It follows that the plaintiffs cannot succeed on their claim that, by virtue of the events in June and July 1995, they contractually acquired an extension of the 1993 lease until the completion of the tender process. What they acquired was a tenancy which was terminable on one month’s notice.

66 I mentioned earlier that Mr Biscoe sought to go beyond the pleadings on this issue and to rely on Mr Willis’ letter of 23 July 1996 as supporting this part of the plaintiffs’ claims. However, in my view this letter cannot, on any view of the matter, assist this aspect of the plaintiffs’ case. I quoted the letter in paragraph 15 above. The plaintiffs seek to rely on the second paragraph which is in the following terms:

“In the meantime continued occupancy of the caravan park by you will be pursuant to the holding over provisions of the expired lease. This includes the payment of rental on a monthly basis and compliance with the terms of the lease.”

67 As I observed earlier, there were no holding over provisions in the expired lease. This portion of the letter was written on an erroneous basis. This being the case, it is difficult to see how it could have any legal effect at all. It must be remembered that by the time this letter was written, the 1993 lease had long since expired and the tenant was, in accordance with my earlier findings, holding over on a monthly basis. Even though Mr Sinclair, on 2 August 1996, purported to accept the proposition set out in this portion of Mr Willis’ letter, this could not have any effect on the nature of the tenancy, given that the premise underlying Mr Willis’ letter was erroneous.

68 It follows that the contractual aspect of the plaintiffs’ case must fail.

Estoppel

69 The plaintiffs’ claim under this head, in essence, is that the Minister is estopped from relying on her legal right to give a month’s notice to quit as it would be unconscionable for her to do so, or alternatively the right was waived. These alternative formulations are referable to the alternative bases upon which relief was granted in Commonwealth v Verwayen (1991) 170 CLR 394. It is said that the estoppel (or waiver) came about because the plaintiffs were induced by the defendant to adopt an assumption which the plaintiffs acted upon to their disadvantage, so that it would be unjust and oppressive conduct on the part of the defendants if they were to depart from the assumed state of affairs.

70 The assumption in question was that Easts would remain in occupation of the caravan park until after the completion of the tender process, which would itself be preceded by the completion of a plan of management for the National Park. The defendants induced the plaintiffs to adopt this assumption by reason of the events surrounding the June 1995 meeting and by reason of its letter dated 23 July 1996. The plaintiffs are said to have acted upon this assumption, to their disadvantage, in the following respects:

· They remained in occupation of the caravan park after 31 October 1995 and continued to pay rent.

· The first plaintiff purchased and installed new cabins in the caravan park.

· The second plaintiff retained a consultant to advise it on issues relating to the plan of management and the tender process.

· The plaintiffs refrained from seeking an alternative suitable caravan park in which to continue their business.

· The first plaintiff served notices of termination to long term residents of the caravan park in October 1996.

71 It is questionable whether the last of these actions (giving notices of termination to long term residents) was pleaded in the statement of claim as a disadvantageous action taken by the plaintiffs in reliance upon the assumed state of affairs. However, this point was not taken at the hearing and it would be unfair to the plaintiffs to adopt an unduly narrow approach to this issue. As will later be seen, the plaintiffs cannot, in any event, succeed under this head.

72 It is appropriate at this stage to discuss the principal authorities on this subject.

73 The high point in the law of estoppel is the Commonwealth of Australia v Verwayen (1990) 170 CLR 394. It was this case which was primarily relied upon by the plaintiffs here. However before turning to Verwayen, mention should be made of the earlier case of Waltons Stores (Interstate Ltd) v Maher (1988) 164 CLR 387. It is unnecessary to traverse the facts of that case. The judgments in the High Court contained a detailed exposition of the development of the law in the area of promissory or equitable estoppel. As Mason CJ and Wilson J said (at 406):

“The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. As failure to fulfil a promise does not of itself amount to unconscionable conduct, mere reliance on an executory promise to do something, resulting in the promisee changing his position or suffering detriment, does not bring promissory estoppel into play. Something more would be required.

Humphreys Estate

suggests that this may be found, if at all, in the creation or encouragement by the party estopped in the other party of an assumption that a contract will come into existence or a promise will be performed and that the other party relied on that assumption to his detriment to the knowledge of the first party.”

74 Brennan J (at 416) made the following observation:

An equitable estoppel is binding in conscience on the party estopped, and it is to be satisfied by that party doing or abstaining from doing something in order to prevent detriment to the party raising the estoppel which that party would otherwise suffer by having acted or abstained from acting in reliance on the assumption or expectation which he has been induced to adopt. Perhaps equitable estoppel is more accurately described as an equity created by estoppel.”

75 A little later (at 423) Brennan J had this to say:

“It is essential to the existence of an equity created by estoppel that the party who induces the adoption of the assumption or expectation knows or intends that the party who adopts it will act or abstain from acting in reliance on the assumption or expectation: see per Lord Denning MR. in

Crabb v Arun District Council

[1976] Ch at p 188.”

76 In the same case, Deane J decried what he described as the “common perception” that the doctrine of promissory estoppel is seen as exclusively equitable and the resulting tendency to see a dichotomy between common law and equitable doctrines in this field. He continued (at 448):

“Upon analysis, there is no acceptable reason why the doctrine of promissory estoppel should be seen, in a fused system, as exclusively equitable or as raising some new or heightened conflict between law and equity. As a matter of authority, the previously accepted prima facie exclusion of assumptions or representations as regards future action or inaction from the operation of doctrines of estoppel by conduct applied equally in equity and at law.”

77 I turn now to Verwayen. This case involved an action in negligence against the Commonwealth by a serviceman who was injured in 1964 when two warships collided. He commenced his proceedings in 1984. At that time, the Commonwealth had a stated policy in relation to claims arising out of this collision that it would not contest liability and would not plead a limitation defence. Accordingly, in the first place, the Commonwealth admitted liability and left in issue only the question of damages. Subsequently, in 1986, the policy was altered and the Commonwealth sought to amend its defence in order to dispute liability and to rely on the fact that the action was statute barred. The High Court, by majority, (Deane, Dawson, Toohey and Gaudron JJ, with Mason CJ, Brennan and McHugh JJ dissenting) held that the Commonwealth was not free at that stage to dispute its liability to the plaintiff and to add its limitation defence. Two of the majority judges (Toohey and Gaudron JJ) based their conclusion upon the doctrine of waiver as between parties to existing litigation. Neither this concept, nor their Honours’ observations relating to it, are relevant to the issues in this case. The other judges dealt with the case as primarily one of estoppel. All five judges agreed that estoppel will be available to a person who has relied upon an assumption which was induced by the other party and who, as a result, has suffered detriment in such a way that it would be unconscionable for the other party to depart from the assumed state of affairs. The difference between the two judges who found for Mr Verwayen on this issue, (Deane and Dawson JJ) and the three in the minority, related not so much to the applicable legal principles as to their application in the immediate case. The minority judges, (Mason CJ, Brennan and McHugh JJ) took the position that an equitable estoppel will permit a court to do what is required in order to avoid detriment to the party claiming it, but no more. They concluded that the only detriment suffered by Mr Verwayen was the expenditure of legal costs between the date of the Commonwealth’s assurance that it would not plead a limitations defence and the date when the Commonwealth changed its policy. This detriment could be met by an order for costs as a condition of allowing the Commonwealth to amend its defence. Deane and Dawson JJ found that additional detriment had been suffered by Mr Verwayen in the form of stress, depression and anxiety which could not be met by an order for costs. Accordingly, the appropriate way of avoiding the detriment was by precluding the Commonwealth from amending its defence.

78 Both Mason CJ and Deane J considered that the time had come to treat all forms of estoppel as part of a single doctrine. As Mason CJ said (at 410):

“In conformity with the fundamental purpose of all estoppels to afford protection against the detriment which would flow from a party’s change of position if the assumption that led to it were deserted, these developments have brought a greater underlying unity to the various categories of estoppel. Indeed, the consistent trend in the modern decisions points inexorably towards the emergence of one overarching doctrine of estoppel rather than a series of independent rules: see

Walton Stores

(1988) 164 CLR, at pp 403-404, 447-451;

Foran v Wight

(1989) 168 CLR, at pp 411-413, 433-437;

Collin v Holden

[1989] VR 510, at pp 515-516;

Taylors Fashions Ltd v Liverpool Trustees Co

[1982] QB 133, at p 153;

Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd

[1982] QB 84, at p 122;

Attorney-General (Hong Kong) v Humphreys Estate (Queen’s Gardens) Ltd

[1987] AC 114, at pp 123-124.”

79 On page 413 his Honour said:

“In these circumstances, it would confound principle and common sense to maintain that estoppel by conduct occupies a special field which has as its hallmark function the making good of assumptions. There is no longer any purpose to be served in recognizing an evidentiary form of estoppel operating in the same circumstances as the emergent rules of substantive estoppel. The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption. (See also the conclusion of Lord Denning MR in

Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd

[1982] QB, at p 122.”

80 Deane J preferred to treat all forms of estoppel under the rubric of estoppel by conduct. At page 440 he said:

“Once it is accepted that the general doctrine of estoppel by conduct extends to representations about future facts (including conduct) and that the operation of promissory estoppel in equity conforms with the operation of estoppel by conduct in law and equity, there is no reason in principle for refusing to accept promissory estoppel as but an emanation of the general doctrine of estoppel by conduct.”

81 His Honour then expounded upon this estoppel. Under the heading “Unconscientious Conduct” his Honour said (at p.440-441):

“The doctrine of estoppel by conduct is founded upon good conscience. Its rationale is not that it is right and expedient to save persons from the consequences of their own mistake. It is that it is right and expedient to save them from being victimized by other people (cf

Allcard v Skinner

(1887) 36 Ch D 145, at p 182). The notion of unconscionability is better described than defined (see per Mahoney JA

Antonovic v Volker

(1986) 7 NSWLR 151, at p 165;

Taylors Fashions

[1982] 1 QB, at pp 151-152; and, generally, per Cooke P

Nichols v Jessup

[1986] 1 NZLR 226, at pp 227-229. As Lord Scarman pointed out in

National Westminster Bank Plc v Morgan

[1985] AC 686, at p 709, definition “is a poor instrument when used to determine whether a transaction is or is not unconscionable: this is a question which depends upon the particular facts of the case”. The most that can be said is that “unconscionable” should be understood in the sense of referring to what one party “ought not, in conscience, as between [the parties], to be allowed” to do (see Story, Commentaries on Equity Jurisprudence, 2nd Eng. Ed. (1892), par 1219;

Thompson v Palmer

(1933) 49 CLR, at p 537. In this as in other areas of equity-related doctrine, conduct which is “unconscionable” will commonly involve the use of or insistence upon legal entitlement to take advantage of another’s special vulnerability or misadventure (cf

Stern v McArthur

(1988) 165 CLR 489, at pp 526-527 in a way that is unreasonable and oppressive to an extent that affronts ordinary minimum stands of fair dealing. That being so, the question whether conduct is or is not unconscionable in the circumstances of a particular case involves a “real process of consideration and judgment” (cf

Harry v Kreutziger

(1978) 95 DLR (3d) 231, at p 240 in which the ordinary processes of legal reasoning by induction and deduction from settled rules and decided cases are applicable but are likely to be inadequate to exclude an element of value judgment in a borderline case such as the present.”

82 His Honour then proceeded to identify what he perceived as the content and operation of the doctrine of estoppel by conduct. He did so in a series of numbered paragraphs. It is a lengthy quote, but is worth reproducing here (at p.444-446):

“1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law the factual ingredients of which fall to be pleaded and resolved like other factual issues in a case. The persons who may be bound by or who may take the benefit of such an estoppel extend beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract. That being so, an estoppel by conduct can be the origin of primary rights of property and of contract.

2. The central principle of the doctrine is that the law will not permit an unconscionable — or, more accurately, unconscientious — departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to for the purposes of the litigation.

3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party.

4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were not to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the conventional basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the facts of a particular case may be such that it falls within more than one of the above categories.

5. The assumption may be of fact or law, present or future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct).

6. The doctrine should be seen as a unified one which operates consistently in both law and equity. In that regard, “equitable estoppel” should not be seen as a separate or distinct doctrine which operates only in equity or as restricted to certain defined categories (eg acquiescence, encouragement, promissory estoppel or proprietary estoppel).

7. Estoppel by conduct does not of itself constitute an independent cause of action. The assumed fact or state of affairs (which one party is estopped from denying) may be relied upon defensively or it may be used aggressively as the factual foundation of an action arising under ordinary principles with the entitlement to ultimate relief being determined on the basis of the existence of that fact or state of affairs. In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (eg where the defendant in an action for a declaration of trust is estopped from denying the existence of the trust).

8. The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed.”

83 There is much to suggest that the plaintiffs in this case are seeking to rely on estoppel as an independent cause of action. This goes beyond any permissible use of this doctrine, as emphasised by Deane J in his seventh numbered paragraph quoted above. However, this was not raised as an issue at the hearing. There are, as already indicated, other reasons why the plaintiffs cannot succeed on this aspect of their claim. Accordingly, other than flagging this issue as a further potential problem facing the plaintiffs, I shall say no more about it. I shall return to discuss the facts of the present case.

84 As mentioned earlier, the plaintiffs’ case is that the defendants induced them to assume that Easts would remain in occupation of the caravan park until after the completion of the tender process, to be preceded by a plan of management. This assumption in fact contains three components:

· That there would be a tender process;

· that it would be preceded by a plan of management; and

· that Easts would remain in occupation in the meantime.

85 It is important to distinguish between these components, for the plaintiffs’ case is, in some respects, different in relation to each of them.

86 It is contended that the defendants induced the plaintiffs to adopt all three components of this assumption by reason of the events surrounding the June 1995 meeting and, later, by reason of Mr Willis’ letter dated 23 July 1996. Although the plaintiffs did not seek to differentiate between the inducements said to have been made in 1995 and those said to have been contained in the July 1996 letter, they raise quite different issues and must be discussed separately.

87 Dealing first with the inducements said to have been made in 1995: the first relevant communication was the undated letter to Mr East, signed on behalf of Mr Willis and sent some time in May. This was quoted above at paragraph 46. As relevant here, it said:

“As you are aware it is Service policy that the granting of commercial rights, such as the caravan park site, must be determined by a public tendering process. Planning for the tendering process will include consideration of various options as to how the site can be used consistent with the objectives of the National Parks and Wildlife Act, 1974 as well as matters such as rental return to the Service and any impact of the site on Lane Cove National Park.”

88 It was the events of the meeting on 21 June 1995 which form the centrepiece of the plaintiffs’ claim that they were induced by the defendants to believe that Easts would remain in occupation of the caravan park until both the plan of management and the tendering process had been completed. The defendants’ witnesses denied that a link was drawn between the plan of management and the tender process or that any assurance was given that Easts’ occupancy of the caravan park would continue until the tender process was completed. Nor was it certain, they said, that a tender process would take place. Mr Rago gave evidence that he told the meeting that the ultimate decision as to this, lay with the executive of the Service and with the Minister. As the meeting broke up, he commented that it was all “subject to approval up the line.”

89 Mr Biscoe, for the plaintiffs, pointed out that Mr Rago’s affidavits contained no qualification as to whether a tender process would take place. He submitted that I should reject this aspect of Mr Rago’s evidence. However, I found Mr Rago to be persuasive on this matter. After all, these comments accurately represented the situation as it was: the ultimate decision was undoubtedly one for the Minister. Moreover, quite apart from anything said by Mr Rago on the subject, the fact that the Minister had ultimate authority on this subject was clearly known to Mr Sinclair and, therefore, one would assume, to Mr East. Given this fact, any assurances given at the meeting about the holding of a tender process could have been of provisional value only.

90 The correspondence which took place after the June meeting is also highly relevant. Mr Sinclair’s letter of 26 June 1995, quoted earlier at paragraph 56, appears to support the plaintiffs’ assertions. See in particular paragraphs numbered 1, 2 and 6. However, Mr Rago’s response of 18 July 1995 throws an entirely different light upon the matter. First, it shows that the plan of management, if “inordinately delayed”, might not precede the tender programme. It also specifies that Easts’ occupancy, after the expiration of the 1993 lease, would be on a “monthly tenancy” basis.

91 I am unable to draw out of this any assurance by the defendants that Easts would be allowed to remain in occupation until after the expiration of the tender process. After all, as I indicated earlier, a monthly tenancy is, by its terms, terminable by either party on one month’s notice. In this regard I accept Mr Ireland’s submission that any reference which was made at the meeting to Easts remaining in occupation until the completion of the tender process was intended to convey that the tenancy could not extend beyond that event.

92 It must also be remembered that, according to the plaintiffs, Mr East was told by Mr Rago at the June 1995 meeting that the whole process, including plan of management and tender, would take approximately six to nine months. In fact, the first notice to quit was served in April 1997, some 22 months later. Accordingly, assuming that it was to the plaintiffs’ advantage to remain in occupation of the caravan park for as long as possible, they in fact fared significantly better than they would have done if the assumed state of affairs had existed.

121 The implication sought to be drawn in this case is not only unnecessary in the case of monthly tenancies, but is contrary to their inherent character.

122 In summary, it is clear that no implication of reasonableness can be drawn in the present case. Accordingly, this head of claim must fail.

Fair Trading Act

123 The final claim made on behalf of the plaintiffs is that the defendants have engaged in misleading or deceptive conduct contrary to section 42 of the Fair Trading Act 1987 (NSW) (“FT Act”). That section provides as follows:

“(1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1).”

124 Section 41 is also relevant to the issues here. That section provides as follows:

“(1) For the purposes of this Part, where a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the person does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.

(2) The onus of establishing that a person had reasonable grounds for making a representation referred to in subsection (1) is on the person.

(3) Subsection (1) shall not be taken to limit by implication the meaning of a reference in this Part to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.”

125 Section 68 provides that a person who suffers loss or damage by conduct which is in contravention of section 42 may recover the amount thereof against any person involved in the contravention.

126 The second further amended statement of claim specifies three sets of representations which are said to contravene section 42 of the FT Act. The first representations arise out of a combination of the representations made at the meeting on 21 June 1995 together with statements made in later letters written on behalf of the defendants, including the letter of 23 July 1996.

127 The second representations would appear to be founded upon Mr Willis’ letter of 23 July 1996.

128 The third representations are said in the statement of claim to have been contained in the Minister’s press release dated 16 April 1997. They comprise the following representations:

“(a) she halted plans by a Caravan park operator (referring to the Plaintiffs or the First Plaintiff) to evict over 40 people from a van park within the Lane Cove National Park;

(b) for years the residents had been misled by the van operator into believing they could reside permanently within the caravan park;

(c) the van operator contravened his lease and was in breach of the

National Parks and Wildlife Act

;

(d) the operator upon being advised of the breach of the Act issued eviction notices;

(e) upon hearing of the plight of the tenants she revoked the eviction notices ordering the Service to do so;

(f) the predicament of the residents was compounded by the former coalition Government encouraging the lessee to take on additional residents contrary to the conditions of the lease.”

129 Section 3 of the FT Act provides as follows:

“This Act binds the Crown in right of the State in so far as the Crown in right of the State carries on a business, whether directly or by an authority of the State.”

130 Two preliminary legal questions need to be addressed before turning to the factual aspects of the plaintiffs’ claims. They are:

· Was the Crown, when making the representations complained of by the plaintiffs, carrying on a business?

· Were the representations made in trade or commerce?

Was The Crown Carrying on a Business?

131 A “business” is defined in section 4 of the FT Act to include a business not carried on for profit. In McMillan v Commonwealth (1997) 77 FCR 337 at 357 Emmett J discussed identical provisions in the Trade Practices Act 1974 (Cth):

“The term “business” is defined in s 4 as including a business not carried on for profit. Nevertheless, it is still necessary to find an activity which can be characterised as carrying on a business. “Words such as “business” have “about them a chameleon-like hue, readily adapting themselves to their surroundings, different though they may be”: per Mason J in

Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd

(1982) 150 CLR 355 at 378-379. “The expression ‘carry on business’, in its ordinary meaning, signifies a course of conduct involving the performance of a succession of acts and not simply the effecting of one solitary transaction”: per Gibbs J in

Smith v Capewell

(1979) 142 CLR 509 at 517.

However, mere repetitiveness is not sufficient to constitute carrying on of a business. System and regularity are involved in the carrying on of the business but it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions. The example of regular deposits to a bank account is sufficient to explain that proposition. Absence of a system and regularity might deny that a business is being carried on but the presence does not necessarily establish that it is: see per Barwick CJ in

Hungier v Grace

(1972) 127 CLR 210 at 217.

There is some authority concerning the application of s 2A. In

Thomson Publications (Australia) Pty Ltd v Trade Practices Commission

(1979) 40 FLR 257 at 275, Deane and Fisher JJ held that the Trade Practices Commission did not carry on a business in the sense referred to in s 2A. However both the Australian Telecommunications Commission and the Australian Postal Commission have been held to be carrying on a business: see per Jackson J in

Tytel Pty Ltd v Australian Telecommunications Commission

(1986) 67 ALR 433 at 436 and per Gummow J in

Suatu Holdings Pty Ltd v Australian Postal Corporation

(1989) 86 ALR 532 at 548. Similarly, in

Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation

(1991) ATPR 52,028, Burchett J held (at 52,035) that it would be plainly wrong to strike out paragraphs of a statement of claim on the footing that the Australian Broadcasting Corporation did not carry on a business.”

132 His Honour went on to consider what is meant by the expression “in so far as” as contained in section 3. In this respect, his Honour made the following observations (at p.356):

“I consider that the expression signifies that the Commonwealth is to be bound only where the conduct complained of is engaged in, in the course of carrying on the business. In other words, persons dealing with the Commonwealth in relation to the actual conduct of a business will have the same protection as when dealing with a private trader who is carrying on such a business but will not have protection when entering into other dealings with the Commonwealth. That appears to me to be consistent with the reason for the introduction of s 2A as explained by the Minister on the second reading of the Bill for the amendment which introduced s 2A (House of Representatives, Debates, 3 May 1977, p 1447) as follows:

“Government Commercial Operations

I announced last December that the Government had decided in principle that its commercial operations should be subject to the same restraints of the Trade Practices Act as apply to like operations of private enterprise. I then informed this House that the Government was studying the detailed implementation of this decision. This Bill gives effect to that decision in clause 4 which provides that the Act is to apply to all business undertakings of the Commonwealth Government and its authorities.”

133 The conduct complained of in that case related to Commonwealth activities in issuing a request for tender and dealing with prospective tenderers for the sale and purchase of various facets of the Australian Government Printing Service (“AGPS”). Whilst his Honour considered that the activities of the AGPS constituted business activities which were conducted by the Commonwealth through that entity, nevertheless the Commonwealth, in issuing a request for tender and dealing with prospective tenderers, was not engaged in the carrying on of that business. The conduct of the officers of the Commonwealth who were involved on the projected sale of the business, had nothing to do with the daily operations of the AGPS. Their conduct was divorced from the carrying on of the business.

134 As Emmett J observed in McMillan, it is necessary to identify the activities of the Crown which are said to constitute the carrying on of a business. The plaintiffs’ counsel, in their submissions, suggested that the defendants were carrying on “the income producing commercial activity of leasing a caravan park”. This might be an unduly restrictive characterisation of the defendants’ activities for this purpose. Indeed, if the plaintiffs were confined to this characterisation, they could not, in my view, succeed on this issue. For I do not accept that the leasing of a single caravan park could possibly constitute the carrying on of a business.

135 Another way of characterising the defendants’ activities, for present purposes, would be as managers of the Lane Cove National Park. This would, in my view, be more likely to attract the provisions of the FT Act than their activities as lessors of the caravan park. On this basis, the question arises whether the defendants, in managing the Lane Cove and other national parks, were carrying on a business within the meaning of the FT Act.

136 Some assistance in answering this question can be found in the judgment of Sackville J in Fasold v Roberts (1997) 145 ALR 548. His Honour there was considering the nature of an unincorporated association called the “Noah’s Ark Research Foundation” (“NARF”) whose objectives were to publicise the existence of a site in eastern Turkey where, it was claimed, the remnants of Noah’s Ark were to be found, and to encourage further investigations into this site. Lectures were organised by NARF in order to raise funds to advance its objectives. Video tapes, audio cassettes and brochures were sold at the lectures and the proceeds used for the same purposes. In discussing whether NARF was conducting a business, Sackville J referred to Mason J’s comment that the word “business” has a “chameleon like hue” but must take its meaning from the particular statutory context. (FCT v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 378-379). Sackville J went on to cite a number of authorities to the effect that the word “business” usually imports the notion of system, repetition and continuity. The dictionary definition of “business” was also discussed, being “trade, commercial transactions or engagements.” His Honour then made the following observation, which is particularly apt to the present case (at p.588):

“The present case involves an organisation which is said to be carrying on a business otherwise than for profit. The nature of non-profit enterprises can vary from those which are essentially commercial in character (cf Re

Ku-Ring-Gai Co-Operative Building Society

(No 12) Ltd (1978) 22 ALR 621 (Fed C of A, FC) at 648-9, per Deane J) to those which exist entirely for charitable or altruistic purposes. In my view, the less commercial the character and objectives of an organisation, the greater the degree of system and regularity the organisations activities to be characterised as a “business”. This approach, in my view, is consistent with the purposes underlying the Fair Trading Act, namely to establish standards of conduct applicable to commercial and consumer transactions:

Prestia v Aknar

at 180, 183. If the net is cast too widely, the legislation will apply to transactions that are not truly commercial in character and confer protection on persons who cannot fairly be described as consumers.”

137 With this background I turn to examine the role of the defendants in relation to national parks. Under section 31 of the NPW Act, the Director-General has the care, control and management of national parks and historic sites. Under section 72 of the NPW Act, the Director-General is required to cause a plan of management to be prepared for each national park as soon as practicable after its reservation as such. Under sub-section (2), the plan of management is to contain a written scheme of the operations which are proposed to be undertaken in order to carry out the purposes and objects of the NPW Act. However, the objects of the Act are not easily found in the opening provisions of the legislation. One needs to look elsewhere; and a significant guide can be found in section 72 (4). So far as relevant here, that sub-section provides as follows:

“(4) In the preparation of a plan of management referred to in this section, regard shall be had to the following objectives:

(a) the conservation of wildlife;

(b) the preservation of each national park, nature reserve, state game reserve, karst conservation reserve, wildlife refuge or wildlife management area and the protection of the special features of the park, reserve, refuge or area;

(c) the prohibition of the execution of any works adversely affecting the natural condition or special features of each national park, nature reserve, state game reserve or karst conservation reserve;

(e) the encouragement and regulation of the appropriate use, understanding and enjoyment of each national park, historic site and state recreation area by the public;

(g) the appropriate use of each national park, historic site, nature reserve, state game reserve or karst conservation reserve by any lessee, licensee or occupant of land therein;…”

138 Even more relevant to this issue is section 8 of the NPW Act which is headed: “Miscellaneous Powers and Functions of Director-General”. Sub-section (3) provides as follows:

“The Director-General shall in the case of every national park, historic site, nature reserve, karst conservation reserve and Aboriginal area:

(a) promote such educational activities as he considers necessary in respect thereof;

(b) arrange for the carrying out of such works as he considers necessary for or in connection with the management and maintenance thereof; and

(c) undertake such scientific research as he considers necessary for or in connection with the preservation, protection, management and use thereof.”

139 With this background, I return to the principles enunciated by Sackville J in Fasold v Roberts. As I see it, the management of a national park is much more of an altruistic enterprise than a commercial one. It is concerned to ensure the preservation and promotion of the environmental value of these areas rather than to achieve any commercial ends. Nor is there any evidence of any system, repetition or continuity in relation to the defendants’ activities in this regard. In other word, the normal indicia of carrying on a business have not been demonstrated.

140 This finding would be sufficient, on its own, to support a finding for the defendants on this aspect of the plaintiffs’ claim. However, I cannot pretend that I have reached this finding with a great deal of confidence. The issue is not an easy one. Accordingly I propose to discuss, albeit briefly, the other considerations which are relevant to this head of claim. As will be seen, my finding is that the plaintiffs could not, in any event, succeed in their claim under the FT Act.

Trade and Commerce?

141 Section 42(1) of the FT Act is in identical terms to section 52(1) of the Commonwealth Trade Practices Act, a provision which has been the subject of extensive judicial discussion. Perhaps the principal authority is the High Court judgment in Concrete Constructions (NSW) Pty Ltd v Nelson (1991) 169 CLR 594. In that case the majority of the Court (Mason CJ, Deane Dawson and Gaudron JJ) preferred a construction of the phrase “in trade or commerce” as “referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character” (at p.603).

142 The first and second representations relied upon by the plaintiffs in this case were made during the course of negotiations between the parties as to the conditions under which Easts would be permitted to remain in occupation of the caravan park, given that the fixed term lease expired in October 1995. The operation of the caravan park by the plaintiffs was itself a commercial enterprise. Easts was paying a commercial rental to the defendant. In these circumstances, I consider that the transactions between the parties had sufficient commercial character to bring them within the phrase “in trade or commerce”.

143 Entirely different considerations apply in relation to the third representations, contained in the Minister’s press release dated 16 April 1997. On no view of the matter could the issue of that press release be seen to be part of any activity which bears a trading or commercial character. It was, to put it bluntly, a purely political exercise designed to paint the Minister in as favourable a light as possible: see Unilan Holdings v Kerin (1992) 107 ALR 709 at 714.

144 For this reason I propose to say no more about the third representations complained of by the plaintiffs. Even if, contrary to my earlier finding, the Crown was carrying on a business in its management of the Lane Cove National Park, nevertheless, these representations would be outside the ambit of the FT Act.

145 I turn now to consider each of the first two representations.

The First Representations

146 The first representations specified in the statement of claim are in the following terms:

“(a) a plan of management for the Land

Cove River National Park would be prepared and adopted by the Minister, and

(b) a public tender would be held for the management of the Land

Cove River National Park; and

(c) a successful tenderer would be selected; and

(d) if the First Plaintiff was not the successful tenderer, a 2 month changeover period would apply; and

(e) the First Plaintiff would remain in occupation of the Caravan Park until the above steps had taken place, on the basis that it pay rent and otherwise on the terms and conditions of the second lease (“the First Representations”).”

147 As mentioned earlier, these representations arise out of a combination of representations made on behalf of the defendants at the meeting on 21 June 1995 together with statements made in later letters written on behalf of the defendants, including the letter of 23 July 1996.

148 It is necessary to discuss separately the representations made in 1995 from those contained in the letter of 23 July 1996. In this regard, a number of the findings I have made earlier in this judgment are applicable here.

149 Dealing first with representations made on behalf of the defendant in 1995, the first indication that a two month change-over period would apply, if Easts was not a successful tenderer for the caravan park, was in the letter of 23 July 1996. Accordingly, representation (d) can be ignored when assessing the events of 1995. As to representation (a), a plan of management was, in due course, prepared and adopted by the Minister. Accordingly there is no basis for suggesting that representation (a) was misleading. In relation to representation (e), I have already found that no representations were made on behalf of the defendant in 1995 to the effect that Easts’ occupation of the caravan park after the expiration of the 1993 lease, would be other than on a monthly tenancy.

150 Finally, I come to representations (b) and (c), namely, that a public tender would be held for the management of the caravan park and a successful tenderer would be selected. I accept that representations along these lines were made both at the meeting on 21 June 1995 and during subsequent correspondence. It was clearly the intention of Mr Rago, and the other Service officers who were then involved in the management of the caravan park, that a tender process would be likely to take place. On the other hand, as already indicated, I accept that Mr Rago said, at the conclusion of the June 1995 meeting, that it was all “subject to approval up the line” (see above at paragraphs 88 and 89). The fact that the Minister was the ultimate decision maker on this subject was, in any event, already known to Mr Sinclair.

151 I am satisfied, on the evidence, that the officers of the Service who told Mr East and Mr Sinclair in 1995 that a tender process would probably take place in relation to the caravan park genuinely believed that this would occur. At that stage, no suggestion had been raised that the Service might itself take over the management of the caravan park. The only outcome under consideration was that the park would be leased to an independent entity. It was Service policy that any such lease should be preceded by a tender process. Accordingly, in 1995, the officers of the Service had reasonable grounds for representing to the plaintiff that a tender process would be likely to take place and a successful tenderer would be selected. Nothing, therefore, happened in 1995 which, in my view, could constitute misleading or deceptive conduct under the FT Act.

152 Quite different consideration apply in relation to the first representations in so far as they were conveyed by the letter dated 23 July 1996. That letter is quoted above at paragraph 15. It was signed by Mr Willis who was then Manager of the North Metropolitan District of the Service.

153 It is necessary at this point to give separate attention to representatives (b), (c) and (d) on the one hand and (e) on the other. Representation (a) has, for reasons already given, been put to one side.

154 It is clear in my view, that each of representations (b), (c) and (d) were made in the letter of 23 July 1997. In fact, no tender process ever took place, as the Service itself took over the management of the caravan park after it was vacated by Easts in April 1998. The question, then, is whether these representations were misleading, in that Mr Willis did not have reasonable grounds for making them. In my view, the plaintiffs have made out this aspect of their case. The evidence shows that Mr Willis became District Manager of the North Metropolitan District in about December 1995. In his affidavit dated 11 November 1997, Mr Willis said the following:

“Very early in my time as District Manager at North Metropolitan District, I formed the view that it would be more advantageous both for the Lane Cove National Park and for the Service for the caravan park to be managed by the Service.

My reasons for forming this view included the fact that the caravan park might provide revenue to the Service. I was also concerned that the caravan park had no connection to the National Park the lessee had not complied with the condition of his lease concerning length of tenure of occupants and I considered that the caravan park needed to be significantly reduced in size and that steps needed to be taken to link it to the National Park.”

155 Mr Willis was not questioned about precisely when he formed this view. However, it must be inferred from the terms of his affidavit that it was before July 1996. He was in an influential position within the Service in relation to decisions about the future of the Lane Cove National Park. Indeed, it was Mr Willis who recommended to the Minister that the Service should take over the management of the caravan park and that Easts should be given a notice to quit, recommendations which were ultimately accepted in April 1997, thus leading to the commencement of these proceedings. Yet the letter of 23 July 1993 contained not a hint that anything other than a tender process might take place. Moreover, a very precise timetable was stipulated for this process. Given that the writer of the letter had already decided that an alternative course, which would not involve a tender process, would be preferable for the Park, I consider these representations to have been misleading.

156 The plaintiffs’ real problems under this head arise when one turns to consider the matter of remedies. The only remedy sought by them is damages under section 68 of the FT Act. That section, so far as relevant here, provides as follows:

(1) A person who suffers loss or damage by conduct of another person that is in contravention of a provision of Part 3,45 (section 43 excepted), 5A or 5B may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention.

157 One must then ask what loss or damage have the plaintiffs suffered as a result of Mr Willis’ representations that the lease of the caravan park would go to public tender? The answer, in my view, is none; or at least, none that is recoverable in these proceedings. Certainly, the plaintiffs acted in reliance on those representations when, some three months later, eviction notices were served upon long term residents in the park, as requested in the letter. But, as already pointed out, this did not itself constitute any detriment or give rise to any recoverable loss to the plaintiffs. The Minister’s subsequent vilification of Mr East, (who is in any event not a plaintiff in these proceedings), cannot in any way be attributed to the misleading representations in Mr Willis’ letter.

158 The mere fact that the representations were misleading and that they were subsequently resiled from is insufficient to establish a claim under section 68 of the FT Act. Loss or damage is an essential ingredient of an action under that section, as well as marking the measure of what damages might be recoverable (see cases under section 82 of the Trade Practices Act including Munchies Management Pty Ltd v Belperio (1989) 84 ALR 700; Sellars v Adelaide Petroleum NL (1994) 120 ALR 16). In this case the plaintiffs claim that, by reason of the defendants’ failure to make good its representations, Easts lost the opportunity to become a successful tenderer of the caravan park. This is one of its heads of damages. But this is not a loss or damage sustained by Easts as a result of its reliance on Mr Willis’ representation that a tender process would proceed. Rather it is the non-attainment of a benefit which might have followed had the representation not been resiled from. This head of damages is not recoverable under section 68 of the FT Act. As Spender J said in Shepherd v Noyce Bros Pty Limited (1985) ATPR at 40-588 in relation to s.82 of the Trade Practices Act:

“The requirement that the entitlement to damages is to “a person who suffers loss or damage” suggests that the essential ingredient of the statutory cause of action is not of the non-attainment of a benefit or the non-realisation of a profit but the incurring of loss or damage, inviting a comparison between the position of the applicant after the contravention with his position before the contravention. This is the “worse off” approach.”

159 I turn finally to representation (e), namely that Easts would remain in occupation of the caravan park until the completion of the tender process on the basis that it pay rent and otherwise on the terms and conditions of the second lease. This is, in one sense, the import of the second paragraph of the letter dated 23 July 1996. However, the letter said that Easts’ occupancy would continue pursuant to the holding over provisions of the expired lease. There being no holding over provisions in the 1993 lease, this assurance was ineffective to alter the legal basis of Easts’ occupancy, which was as tenant under a monthly tenancy. It must also be observed, (although it is not strictly relevant to the outcome of this case), that Easts was, in 1996, in breach of the 1993 lease. As mentioned earlier, clause 5(x) of the 1975 lease, which was imported into the 1993 lease, provided that no person was to be permitted by the lessee to reside on the premises for a period in excess of 12 weeks during any one year. Mr Biscoe pointed out that long term residents were in occupation of the caravan park since before 1986, to the knowledge of the Service. He submitted that, in these circumstances, the Service must be taken to have waived this breach. I have grave doubts as to whether the defendants’ failure to take action about long terms residents could possibly constitute a waiver of this breach of the lease. However, I do not need to consider this aspect of the case. For even if at one time the Service acquiesced to the presence of long term residents in the park, this was altered in May 1995, when the Service wrote to Mr East expressing concern about the presence of long term residents in the caravan park. This letter is quoted in paragraph 46 above. It includes the following passage, “I also request that you do not permit any additional long term occupation of sites in the caravan park inconsistent with the terms of your lease.” Yet it is clear from a schedule annexed to Mr Easts affidavit of 26 April 2001 that, between June 1995 and July 1996 approximately 14 new residents were accepted into the caravan park for periods in excess of 12 weeks in the year. This was a clear breach of the 1993 lease which would have entitled the defendants to take eviction proceedings against Easts, even had the latter’s tenancy been as described in representation (e).

160 It follows that, even if representation (e) had been made in the letter of 23 July 1996 (which in my finding it was not) it would not have served to avail the plaintiffs in these proceedings.

The Second Representations

161 I propose to discuss these representations but briefly. My findings in relation to each of them has, in one way or another, already been discussed in relation to other issues raised in this case.

162 Representations (a) and (b) were true and accurate. Long term occupation of sites in the caravan park was both a breach of the 1993 lease and was inconsistent with Service policy. Representation (c) was not made in the letter of 23 July 1996.

163 Representation (d) is in a different category. The letter of 23 July 1996 clearly linked the eviction of long term residents and the projected tender process. The former was said to be necessary in order to facilitate the latter. Insofar as the author of the letter had already decided that an alternative to the tender process would be preferable for the Lane Cove National Park, this representation was misleading. Moreover, in linking the eviction of long term residents with the tender process, the letter operated as a powerful inducement to the plaintiffs to comply with the request that long term residents be evicted. As the defendants well knew, Easts was planning to compete in the proposed tender process, and therefore had every reason to co-operate with the Service in matters which might facilitate the tendering and selection process.

164 On the other hand, it cannot be said that the plaintiffs suffered loss or damage as a result of this representation. The service of eviction notices on long term residents did not, as indicated, cause loss or damage to the plaintiffs. On the contrary, it was a step which it was in their interest to take, if requested to do so, regardless of any prospective tender process. In this regard I repeat the comments I made in paragraph 112 of this judgment.

165 I should make one final point about the letter of 23 July 1996. It was, as I have found, misleading in that it expressed the Service’s unreserved intention to proceed with a tender process in relation to the caravan park. But insofar as the letter expressed concern about the presence of long term residents in the park, and the desire that they be evicted from the park, these were the genuinely held views of all Service representatives who were, at that stage, concerned with the management of the park. There was a difference between Mr Rago and Mr Willis as to how the Service should deal with the problem of long term residents in the park. But the fact that they were a problem and would in due course need to be evicted, was not in issue between them. The turnaround only came considerably later, after the service of the eviction notices had political repercussions which led the Minister to intervene and reverse the decisions which officers of the Service had earlier made.

166 It follows that the plaintiffs have no claim for loss or damage arising out of the second representations. The third representations, as indicated earlier, are outside the ambit of the FT Act.

Conclusion

167 The plaintiffs have failed to establish any of the heads of claim raised in these proceedings. Accordingly, a verdict for the defendants must follow. A cross claim was originally lodged on behalf of the defendants but was not proceeded with except insofar as it relates to unpaid rent for the months before Easts vacated the caravan park in April 1998. The plaintiffs have not disputed this aspect of the defendants’ cross claim. The amount of unpaid rent, and interest, is agreed at $32,276.17.

168 In the result I give a verdict for the defendants in relation to the plaintiffs’ claim. By consent I give verdict for the defendants in their cross-claim in the amount of $32,276.17. I order the plaintiffs to pay the defendants’ costs of these proceedings.

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Last Modified: 07/09/2001

CITATION:	Easts Van Villages & Anor -v- Minister Administering the National Parks and Wildlife Act & Anor [2001] NSWSC 559
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 30056/97
HEARING DATE(S):	31/5/01-7/6/01, 12/6/01-14/6/01
JUDGMENT DATE:	6 July 2001
PARTIES :	Easts Van Villages Pty Ltd (First Plaintiff) Van Villages Pty Ltd (Second Plaintiff) Minister Administering the National Parks and Wildlife Act (First Defendant) State of New South Wales (Second Defendant)
JUDGMENT OF:	Mathews AJ

COUNSEL :	PM Biscoe QC; S Stanton (Plaintiffs) JM Ireland QC; J Maston (Defendants)
SOLICITORS:	Aitken McLachlan & Thorpe (Plaintiffs) Crown Solicitor (Defendants)
CATCHWORDS:	LANDLORD AND TENANT - holding over after fixed term lease - whether tenancy continued as monthly tenancy or whether lease for indefinite period created - found to be monthly tenancy - landlord entitled to terminate lease on appropriate notice - ESTOPPEL - lease terminated - lessee assumed that tenancy would continue until lessor undertook tender process for new lease - no detriment suffered - Commonwealth v Verwayen applied - no unconscionable conduct - MISLEADING AND DECEPTIVE CONDUCT - s 42 Fair Trading Act 1987 (NSW) - misrepresentation as to lessor’s intention to hold public tender for renewal of lease - whether the Crown, as lessor, carried on a business and whether representations were made in trade or commerce - held, Crown not carrying on a business, some representations made in trade or commerce - Ministerial press release not in trade or commerce - claim for loss of opportunity to become successful tenderer - claim not made out as no loss or damage suffered - CONTRACT - implied term to act reasonably and in good faith in exercise of legal rights - not needed to give business efficacy - no grounds for implication
LEGISLATION CITED:	National Parks and Wildlife Act 1974 Local Government (Movable Dwellings) Amendment Act 1986 Fair Trading Act 1987
CASES CITED:	Commonwealth v Verwayen (1991) 170 CLR 394 Waltons Stores (Interstate Ltd) v Maher (1988) 164 CLR 387 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 McMillan v Commonwealth (1997) 77 FCR 337 Fasold v Roberts (1997) 145 ALR 548 FCT v Whitfords Beach Pty Ltd (1982) 150 CLR 355 Concrete Constructions (NSW) Pty Ltd v Nelson (1991) 69 CLR 594 Munchies Management Pty Ltd v Belperio (1989) 84 ALR 700 Sellars v Adelaide Petroleum NL (1994) 120 ALR 16 Shepherd v Noyce Bros Pty Limited (1985) ATPR 40-588 Unilan Holdings v Kerin (1992) 107 ALR 709
DECISION:	Verdict for the defendants